Does age matter?

As Mark Twain once said: “Age is an issue of mind over matter. If you don’t mind, it doesn’t matter.” This is the philosophy employers are going to have to adopt when the Employment Equality (Age) Regulations 2006 (“the regulations”) become a reality.

Alan Johnson, Secretary of State for Trade and Industry, has recently launched the “Coming of Age” consultation on the proposed new regulations, which will enact measures to prevent age discrimination in all areas of employment from recruitment, through promotion and training, to retirement.

The regulations are still in draft, but the policy behind the legislation has already been through the consultation process, so they are likely to give a good indication as to how the final version will look.

Though the regulations are not scheduled to come into force until 1 October next year, you should be advising clients of the implications now so they have time to plan ahead and iron out any wrinkles (excuse the pun) in their employment policies or practices. Likewise, you should be doing some housekeeping of your own as the regulations will give rights not only to employees, but also to office holders and self-employed people, including advocates and partners in a partnership. 

Age-neutral recruitment

Challenges to recruitment decisions are likely to be manifold and an exercise in age-proofing such decisions would be wise. One of the most obvious steps to take is to move “date of birth” from the application form to an equal opportunities monitoring form. However, someone’s age could still be worked out from their employment and education history.

An “age-neutral” application form has been drafted by the Employers’ Forum on Age. The form is in three sections, two of which – Personal Information and Equal Opportunities – stay with the HR department. The person recruiting only gets to shortlist candidates based on the Competency section which applicants are asked to fill out having reviewed a detailed job and person specification. This is likely to be a key change in mindset for the majority of employers.  

Age-proofing of job and person specifications will also need to be carried out. How many times do we see adverts seeking individuals with, for example, “5+ years PQE”? This is potentially indirectly discriminatory against younger individuals, and firms will have to be able objectively to justify any such requirement.

Likewise, it might be prudent to think twice about using terms such as “mature”, or “young and dynamic”, in job adverts. You may also wish to reconsider the media through which you advertise to ensure you are reaching out to as wide a range of individuals as possible. 

Retirement: it pays to plan

At the other end of the employment spectrum is retirement. In addition to removing the current upper age limits for unfair dismissal and redundancy rights, a national default retirement age of 65 has been proposed. Employees will be given the right to request to work on beyond that age and employers will be under a duty to consider any such request. To a certain extent this mirrors the arrangements now in place for employees who are the parents of young children, which appear to be working well to date. 

Retirement ages below 65 will be unlawful unless they can be objectively justified. Consideration should therefore be given to whether there are sound business reasons for a lower retirement age, or whether the limit should be raised to the level of the national default age, or abolished altogether. 

It is clear that employers adopting a more proactive approach to managing the retirement process will be at an advantage in defending employment tribunal claims, particularly with the concept of a “planned retirement” having been introduced. A retirement will be “planned” where it takes effect at the national default retirement age or at the employer’s normal retirement age. Alternatively, the draft regulations provide that an employer must have informed the employee of their retirement date at least six months in advance. In any of these circumstances it will be assumed that retirement is the real reason for dismissal and not, for example, redundancy. The onus will then be on the employee to prove that the dismissal was for a different reason.

Next steps

This is only a snapshot of the issues which you and your clients are likely to have to deal with as a result of the new regulations. Attention will also need to be given to employee benefits, occupational benefits, training, promotion, redundancy policy, and so the list goes on.

If you wish to make your clients’ or your own views on the consultation known, you have until 17 October this year to do so. The consultation document can be accessed here: www.dti.gov.uk/er/equality/age.htm.

Jane Fraser, Head of Employment, Pensions and Benefits, Maclay Murray & Spens